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Election of Senator Caldwell. 



. THURMAN, 





OF OHIO 


In the United States Senate, 





March 18,1873, 


On the resolution ottered by Air. AIorton declaring that Alexander Caldwell 
was not duly and legally elected a Senator from the State of Kansas. 

Mr. THURMAN. Mr. President, as I desire, to lie as brief as possi¬ 
ble, I hope I may not be interrupted in the course of rny remarks. I 
do not expect to shed any new light on this question ; and my only 
apology for speaking is that I feel it to be a duty I owe myself: for, 
sir, we cannot conceal the fact that Mr. Caldwell is not the only 
Senator on trial to-day—the whole Senate is on trial. The question 
is not simply whether Caldwell is guilty, but whether the Senate 
has the intelligence and the tirnmess to pronounce his guilt if guilty 
he be. And if any Senator, after looking at this testimony, shall be¬ 
lieve him guilty and feel it to be his duty so to vote, there seems to be 
a necessity that he should state the reasons of his belief. It is a most 
responsible step to declare a Senator guilty of high crimes and misde¬ 
meanors, to declare that he procured his seat by corrupt and corrupt¬ 
ing means, and he who does so should be able to state why it is that 
he renders a verdict of “ guilty.” 

Now, Mr. President, feeling the responsibility that rests upon each 
one of us in this investigation, I have carefully read every word of 
the testimony. I have read it in the retiracy of my library, with my 
pencil in my hand, determined to the best of my ability to form a cor¬ 
rect judgment upon it. It has made an impression upon my mind 
that I do not think is likely to be removed. I cannot go into the tes¬ 
timony in detail to show why it is that I have arrived at that conclu¬ 
sion ; to do that would take up more time than is allotted to me to 
speak; but I may say, iu general terms, that I cannot avoid the con¬ 
viction that the election of Mr. Caldwell was thoroughly corrupt; 
not that there was bribery of one member of the legislature alone, but 
that there was, directly or indirectly, bribery of more men than con¬ 
stituted his majority. 

I do not pretend that I can name the men, nor do I believe that in 
any such case as this the Senate ever will be able to name the men. 
The Senate must act, as was said yesterday by my friend from Dela¬ 
ware, [Mr. Bayard,] upon the best evidence that the nature of the 
case admits; and in this case the only wonder with me is that the 
evidence-is as clear aud conclusive as it is. Never before in any such 
case—aud I have been in the investigation of some of them—never 
before has testimony been so utterly damning as this. Why, Mr. 
President, let us look at it a little. 

In 1871 there was to be an election for Senator in the State of 
Kansas. There was then a gentleman, named Alexander Caldwell, 



i • 




living in the city of Leavenworth, who had been known as what is 
familiarly called a business man ; that is, lie had been a Government 
contractor—a contractor to carry provisions and supplies across the 
plains to Indians and to our military posts—and in the pursuit of 
that occupation, a perfectly honorable one, he had accumulated a 
large fortune; but he had not the least political standing above that 
of any other intelligent elector of Kansas. There was nothing in his 
political status, nothing in his intellectual ability, nothing in his 
education, nothing in any public service he had ever rendered, that 
would make the people of Kansas think for one moment of Alexan¬ 
der Caldwell as their representative in the Senate of the United 
States; and had he been a poor man there would not have been, from 
one end of the State to the other, one man who would have dreamed 
of his ever holding a seat in this body. Yet, sir, that obscure gentle¬ 
man grew, in a few weeks time,to be the m'ost formidable candidate 
before the Kansas legislature. With no supporters at first, he soon 
acquired such support that other candidates were compelled to 
give way, and in*the end he was elected to this body by a large 
majority. 

Such things as that are not in the ordinary course of human events, 
and we naturally look around to see how it was that this phenomenon 
occurred. A seat in the Senate of the United States has become in 
this country an object of ambition second to but one, and perhaps not 
second to that—the Presidency. The struggle for a seat in this body 
among the ambitious and able men of the country everywhere is a 
struggle that sometimes convulses a State and attracts universal 
attention throughout the length and breadth of the Kepublic. But, 
sir, here we find the prominent men of the State of Kansas either 
standing aside most mysteriously or beaten to death in the race, and 
a Government contractor, who had never figured even in a town 
meeting, so far as we know, all at once elevated to the highest place 
in the roll of candidacy, and finally elected. 

When we look into the evidence embodied in this report, we soon 
discover a clew to this mysterious event. In the first place we find • 
that a conference was held in the city of Leavenworth, where Mr. 
Caldwell resided, and that the result of the conference was that he 
should be a candidate,and that then, in order to bring him out, a paper 
was signed requesting him to be a candidate. But, sir, that paper, 
signed by I believe about two hundred of the citizens of Leavenworth, 
would have had but slight effect in promoting his election. Some j 
other and more potent agency than that was required; and what do 
we find f Why, sir, one of the first things is the expenditure of large 
sums of money upon a newspaper of that city, in order to circulate 
it throughout Kansas, filled with articles advocating the election of 
Mr. Caldwell. I do not complain of that. That was perhaps legiti- , 
mate; that was perhaps an admissible use of money. Although there 1 
might be some indelicacy in creating a factitious reputation for one’s 
self, although there are some who do not think that that is precisely 
the way to acquire that standing which makes people turn their eyes 
toward a man and say “ We want him for our Senator,” I shall pass ^ 
that by and call it, if you please, a legal but an indelicate use of 
money. And I mention it for no other reason than to show that 
money was to be used ; that money was relied upon to achieve suc¬ 
cess. 

But, sir, we soon come to something more important than that. 
There was another citizen of the city of Leavenworth, a man who 
had been governor of the State, a man who in previous elections had 



been a candidate for the Senate of the United States; a man of in¬ 
fluence in Leavenworth, and of extensive acquaintance and influence 
throughout the State, and that man was Thomas Carney. Now, sir, 
when we touch Thomas Carney, we begin to see more clearly the 
agency, the means, by which Mr. Caldwell was to be elected to the 
Senate of the United States. A solemn bargain is made with Thomas 
Carney, and not left to parol, but reduced to writing, by which, for 
the sum of $15,000 to be paid to him, $10,000 certain and $5,000 con¬ 
tingent on the election of Caldwell, Mr. Carney agrees, and sol¬ 
emnly pledges himself in writing, that he will not be a candidate. 
And, sir, more than that, there was a separate article, not committed 
to writing, that he should use all his power and all his influence to 
elect Mr. Caldwell ; and, sir, he fulfilled both articles to the letter. 
He did not become a candidate, and he did go to Topeka, the seat of 
government, and, from first to last, per fas aut nefas , do all he could 
to elect Caldwell. He earned his $15,000 if money could be earned 
by such a service. 

But, sir, that is not all. We see now that money is to be used; we 
get a glimpse of the means by which it is expected that this obscure 
gentleman is to be elevated to a seat in the Senate of the United 
States. It begins with $5,000 to a newspaper and $15,000 to Carney. 

But, sir, there was another competitor, one Sidney Clarke, a gentle¬ 
man not unknown to the people of Kansas, for he had represented 
them, and, I believe, at that very moment was their Representative 
in the House of Representatives, in Congress—elected by the whole 
State; a gentleman known to that people and of great influence 
among them. He was a candidate too. Well, sir, what disposition 
was made of Mr. Sidney Clarke ? He continued a candidate until the 
first vote was given, until the houses voted separately; and what 
then ? Why, sir, a bargain is made with him that his expenses are 
to be paid, and he is to withdraw from the contest, aud, by the 
strangest arithmetic in the world, his expenses are estimated at from 
twelve to fifteen thousand dollars. 

But, sir, that is not all. We find the declaration of Mr. Caldwell 
that he will be elected to the Senate if it costs him a quarter of a 
million dollars. 

Mr. CARPENTER. Where does the Senator find that ? 

Mr. THURMAN. In Mr. Carney’s testimony. 

Mr. CARPENTER. O! 

Mr. THURMAN. The Senator says “ O,” as if no credit is to be 
attached to the testimony of that witness. Well, sir, 1 am not at all 
in love with that witness, not the least in the world, no more than 
the Senator is in love with him, but I do find that this Committee 
on Privileges and Elections, so far as I can see unanimously, reported 
most material facts in this case upon the testimony of Thomas Car¬ 
ney. • 

Mr. CARPENTER. My friend will allow me to say that, so far as 
I am concerned, I reported no fact on the testimony of Mr. Carney. 

Mr. THURMAN. Well, sir, I cannot help it ; I am obliged to take 
the report as I find it. I find no dissenting report about the facts ; 
the only dissent I find is as to the conclusions of law upon those facts. 

Mr. CARPENTER. I know my friend does not wish to misrepre¬ 
sent me, and he is doing it now, unintentionally. 

Mr. THURMAN. It is unintentionally if I am doing it. 

Mr. CARPENTER. I stated, on the first opportunity I had in the 
Senate on that subject, that I dissented totally from the findings of 
the committee in matter of fact, and the chairman of the committee 


4 


confirmed that statement, that L dissented all the way through on the 
findings of fact. I did not take the time, because I had it not, to 
write a dissenting report. I was engaged in preparing the report on 
the Louisiana case, which was going on at the same time in the com¬ 
mittee, and which took all my time day and night, and for that reason 
I was unable to prepare a minority report; but every member of the 
committee knows that I did dissent entirely from the findings of fact, 
as I stated when the matter was first reached in the Senate. 

Mr. THURMAN. I was speakiug of the report, and I said that I 
found in it no dissent. Now the Senator says that he did dissent, and 
expressed his dissent in the Senate. Doubtless that is so, but it is 
the first time I ever heard of it. Therefore he is right, and I am right. 
In the report, on which we are to act, which we take to our rooms, 
which we read and which we study, I fiud fact after fact of the gravest 
importance found upon the testimony of Thomas Carney by our com¬ 
mittee. 

But, sir, Thomas Carney is not an uncorroborated witness. He 
stands corroborated so much that it will take more argument, I think, 
than has yet been adduced to shake his testimony in its material 
points. Did he receive $15,000 for standing aside and aiding Cald¬ 
well? Caldwell says so himself in his written paper handed to the 
committee. Did Caldwell say to Carney that that election had cost 
him from fifty to sixty or seventy-five thousand dollars ? He said the 
same thing to two other witnesses, at least, who are not impeached, 
and there Carney stands corroborated. But, sir, that is not all. He 
stands corroborated iu regard to the use of money by various other 
witnesses who testify to particular instances. And so, Mr. President, 
bad man as he is, utterly unworthy of our respect, you cannot say 
that his testimony is to be thrown aside. No, sir; you have not made 
against him the old case for throwing a bad man’s testimony aside, 
that it is not corroborated. You have not proved him guilty of per¬ 
jury in a single instance, so that you may say of him falsus in uno, 
falsus in omnibus, and therefore he is not to be believed at all unless 
corroborated. You have not convicted him of perjury in any one 
single instance, so that he could be found guilty by a jury if he were 
on trial under an indictment. 

Mr. CARPENTER. My friend wall pardon me for saying that he 
has not been convicted, but he is contradicted by more than two wit¬ 
nesses on the same point several times in the testimony taken. 

Mr. MORTON. He is corroborated by more. 

Mr. THURMAN. Although I requested when I got up that I might 
not be interrupted, as I wanted to speak briefly, I know the laudable 
habit of the Senate of turning this hall into a chamber for conversa¬ 
tion and dialogue, of puttiug a person through the longer and shorter 
catechism every time he gets up to debate a question, and therefore 
I believe I will not complain, and I will withdraw my request that I 
may be allowed to proceed without interruption. 

But, Mr. President, that is not all. Here is testimony proving, if 
the witnesses are to be credited, the purchase of the vote of a man 
named Bayers, proved by Mr. Caldwell’s own confession, of the pur¬ 
chase of a man named Legate, of giving a thousand dollars for his 
vote to a man named Crocker ; and then there is that most mysteri¬ 
ous transaction, and not so mysterious either, in view of the testi¬ 
mony, about the seven Doniphan members, and the missing $7,000. 

Mr. President, it is utterly impossible to shut our eyes to the facts. 
There was a gentleman who had declared that he would be elected 
although it should cost a sum of money that would gladden the 


hearts of a dozen Senators here if they owned it in equal parts. Here 
is a gentleman who suddenly springs up into importance in this* 
way, and who confesses that his election has cost linn from sixty 
to seventy-five thousand dollars, and against whom are proved 
these particular instances of bribery and the corrupt use of money; 
and yet Senators hesitate and say, “ Why we want proof of so many 
distinct cases of bribery, enough to have controlled the election, and, 
until the bribed men can be named, the proof is insufficient.” 

Mr. President, if you do not expel a Senator for bribery, or declare 
his election void for bribery, until you get stronger testimony than 
is in this case, the power to expel and the power to judge of elections 
might as well be stricken out of the Constitution. 

Now, sir, I am not troubled at all in this case with the question, 
what would be our duty if there were a single case of bribery proved 
and nothing more ; a single case of bribery where the majority was 
large. I cannot resist the conviction, I cannot shut my eyes to the 
fact that Mr. Caldwell bought his way through that legislature 
into the Senate of the United States, and therefore the question is 
plainly presented : Is an election which is procured by bribery a valid 
or a void election ? Is it the law of this land, is it the Constitution 
under which we live, that a man can buy a seat in the Senate of the 
Uuited States? That is the question. The question is whether you 
shall make proclamation to the people of the United States that seats 
in the Senate are merchandise, and that the man who has the longest 
purse gets the goods. 

And now it is said that it is the law of this land that, no mat¬ 
ter how plain and flagrant the bribery may be, although it were 
confessed upon the record, although the testimony was such as to 
convince beyond all reasonable doubt, nay, though there should 
be no doubt at all, yet the election is a valid election. That is the 
doctrine. Why a valid election ? Because, as we are told, we cannot 
look into the motives of the members of the legislature who cast 
their votes. If every man of them who voted for Alexander Cald¬ 
well were to come before the Senate at its bar, and swear that he 
did so vote for a money consideration, and Caldwell should stand 
here and say : “ I admit it.; now wffiat can you do ?” the Senate of 

the United States would have to reply : “ O, w r e cannot impute to 

these gentlemen that they were guilty of being bribed ; we cannot 
impute corruption to them ; they are members of a State legislature ; 
State rights prohibit our imputing anything like crime to them ; we 
cannot do that at all; aud although they stand at our bar holding 
up their hands and pleading guilty, aud their elected man pleads 
guilty too, the election is nevertheless perfectly valid, and all the 
Senate can do is to expel the man if two-thirds are found voting to 
expel him!” 

Mr. President, before I come to such a conclusion as that, I shall 
have to hear stronger arguments than I have yet heard. I admit 
that there is danger—and that is the only thing that makes me falter 
in my conclusion—there is danger that the power of a majority of the 
Senate to declare an election void may be abused. 

I know that, when party spirit runs high, acts of injustice are done 
to a minority: aud Ido not underrate that danger at all. But, sir, on 
the other hand is a danger that is mon appalling than that. I can¬ 
not conceal from myself that if there were not corruption in society 
itself, no such transaction as that election of Mr. Caldwell could ever 
have taken place. It is because corruption threatens to permeate 
the community, it is because the use and the illegal use of money in 


elections is becoming - the rule and not the exception, and that too 
jnany people are stopping - their ears and shutting their eyes to the 
fact of how their elections are carried, and too often tacitly saying 
that all is fair in politics—it is because of this corruption that menaces 
the whole body politic of the country, that such an election as that of 
Alexander Caldwell ever could have occurred ; and now, if the 
Senate of the United States shall say to the country, “This thing is 
legitimate; we make proclamation to all adventurers that they may 
buy a legislature at their will, and we will not hold the election to 
be void ;” if you say that, you will have done more, Senators, to over¬ 
throw purity in the Government, more to overthrow the power of re¬ 
publican institutions, more wrong to the people, and more wrong to 
the Government than ever will be perpetrated by a lawless majority 
in this chamber turning out without cause a member of the minority. 
The mass of the people, thank Heaven, are yet pure. 1 beseech, you, 
Senators, to aid them and not the corruptionists. 

But, Mr. President, what is the legal argument in the case f To 
my mind it is in a very narrow compass. I agree that it. is to be de¬ 
termined by the Constitution. I do not say that if there were nothing 
in the Constitution on the subject of our being the judges of the 
elections, qualifications, and returns of our members, we would have 
no power of decision upon these matters. I think, with Chief Justice 
Shaw, and I do not see how anybody can think otherwise, that that 
is an inherent power, and that, in the absence of express grant, we 
should resort to the inherent power in order to exercise it. But when 
there is an express power given to us, it is not admissible for us to 
resort to implied powers. I say there is an inherent power in the legis¬ 
lature to judge of the election of its members. 

Mr. BAYARD. The authority relied on did not say so. 

Mr. THURMAN. If he did not he ought to have said so. That 
must be so; but when there is an express power given, then, I say, 
you do not look to implied or inherent powers. You go to the express 
power, and I go to the express power, to find the authority for the 
resolution of our committee. What is that express power? It is 
found in article one, section live, paragraph one, of the Constitution ; 

Each House shall be the judge of the elections, returns, and qualifications of 
its own members. 

There is the express power. Now, sir, I have first to say to my friend 
from Delaware that if the power to judge of the elections includes 
the power which I contend for, then there is no violation of State 
rights in exercising it, for it is expressly delegated to us. It cannot 
be a violation of State rights to exercise a power that the Constitution 
confers upon us. You might just as well say that it was a violation 
of State rights for us to levy taxes or to declare war. 

Mr. BAYARD. I did not say that. 

Mr. THURMAN. I know my friend is too able a lawyer to ever say 
that. The question is a question of the interpretation of the Constitu¬ 
tion. If the Constitution confers the power upon us, there is no viola¬ 
tion of State rights in the resolution ; if it does not confer the power 
upon us, we do not possess it ; that is all there is of it. So that the 
question is not one of State rights at all, but is simply a question of 
the interpretation of the Federal Constitution. 

Now, is this power delegated ? In the first place I have to remark 
that you find no such power in the Articles of Confederation. Why 
not ? Because the members of the Congress of the Confederation were 
in fact, whatever you may call them in name, ambassadors of the 
ditfereut colonies, or States. Each of them derived his whole power 


from the State that appointed him. He was not appointed under any 
general constitution for the whole country, but he was the delegate ' 
chosen by the State, and the State alone had the right to inquire 
whether he was properly appointed or whether he should retain his 
seat, and the State had the power to turn him out at any time, to 
rescind his appointment at any time, and compel him to leave the 
Continental Congress. Therefore you find no such power in the Arti¬ 
cles of Confederation. But that is not the case now. We have a 
Constitution, and the Senate exists by virtue of the Constitution ; 
and the Constitution declares how. the Senate shall be constituted, 
and what shall be its powers ; and among them is the power to judge 
of the elections, qualifications, and returns of its members. 

Now, Mr. President, mark it, there is no question as to what is meant 
by “ qualifications.” We know that those are the qualifications spec¬ 
ified in the Constitution itself, and that you can superadd no other 
qualification. There is no difficulty, either, about the “ returns.” 
What shall be the returns is a matter to be determined by law, and 
the law declares what shall be the returns, what they shall contain, 
and what they shall show ; that is all matter of law ; and we decide 
upon their face whether they are in due form and in compliance with 
law. But then, sir, comes the question of the election. We are to 
be the judge of the “ election.” What is meant by that ? In the 
first place, mark it that the word is without limitation. It does not 
say you shall be the judge of the election quoad this or quoad that; 
you shall be the judge to the extent of finding whether the election 
was held on the right day, or whether it was held by a body that 
constituted a valid legislature, or whether there was a majority, and 
you shall be judge of nothing else. It puts no limitation on your 
power to judge of the election. It is a perfectly unlimited power to 
judge, and is therefore a power to hold the election void for any 
cause that, according to law and reason and consistency with our 
Constitution, makes an election void. • 

But, sir, that is not all. The power given to the Senate is precisely 
the same as the power given to the House of Representatives. It is 
not given in a similar paragraph ; it is given in the same paragraph. 
The very sauie words that confer the power upon the Senate confer 
the power upon the House. Has there been any one here bold enough 
to deny that it is competent for the House of Representatives to un¬ 
seat a member upon proof that he obtained his election by bribery? 
No one has done that. But when you say that the House has that 
power, you must say the same thing of the Senate, for the same words 
that give the power to the House give it to the Senate. There is not 
one word in the Constitution that makes any difference. The Sena¬ 
tor from New Jersey [Mr. Stockton] attempted to find a difference, 
and called our attention to the fact that the clause which provides 
for the election of Senators was in these words: 

The Senate of the United States .shall he composed of two Senators from each 
State, chosen by the legislature thereof. 

And he dwelt upon that word “chosen,” and said that all we could 
inquire about was, whether there was a lawful legislature and whether 
it made a choice ; and that we could go no further. That I may not 
misstate him, I read his very words: 

The first question that comes tip, therefore, in every one of these cases, is, Is it 
the legislature of the State ? and the next question is, Did they choose ? and further 
than that there is no question. 

That is the proposition. Well, sir, it is substantially the same 
proposition maintained by every one of the Senators who have 


8 


spoken against the report.o£*the committee. Cover it up in words 
if you please, it all comes to that. It is substantially the same prop¬ 
osition—that you can only inquire, Was there a legislature, and did it 
choose ? Well, now, might you not with just as much propriety un¬ 
der this clause about the election of members of the House of Repre¬ 
sentatives, say that the only inquiry is, Were the persons who chose 
the people of the State, and did they choose ? The language, mutatis 
mutandis, is exactly the same. The language in regard to members of 
the House of Representatives is that— 

The House of Representatives shall be composed of members chosen— 

Just the same word, “ chosen ”— 
every second year by the people of the several States. 

And therefore you might with just as much propriety say in the 
House of Representatives the only question is whether the men who 
voted for this member were the people of his State, by which is 
meant the qualified electors of that State, and did they choose him. 
And if they did choose him, no matter how corrupt were their mo¬ 
tives ; no matter how many of them were bribed ; no matter though 
he bought his seat there, still, you can no further go. They are the 
people, they have chosen, and there is an end of the matter. You 
can say that just as well in the one case as you can in the other. 

But, Mr. President, let us go a little further than that. What is 
this language in the Constitution ? “ Each House shall be the judge 

of the elections,” Ac. Was that a term unknown to the law, “judge 
of the elections of its own members?” No, sir ; it was known long- 
before this Government had an existence. It was known long before 
this continent was discovered. It was a term known to the law of 
that land from which we derive the most of our institutions, and by far 
the greater part of our law, long before Christopher Columbus was 
born. “ Judge of the election of its own members ” is a term as old 
as the British Parliament. What does it signify if it does not mean 
that the House may hold an election to be void if it was obtained by 
bribery ? When our forefathers put that language in the Constitu¬ 
tion of the United Stp£es,' they knew what it was for a legislative 
body to be the judge of the election of its own members, and they 
knew that, according»tif parliamentary law, in judging of the election 
of a member of the House of Commons, if it were found that he was 
elected by bribery, it was held that his election was void. They 
knew that in the constitution of every American State then in exist¬ 
ence, for those States pre-existed the Federal Constitution, there was 
a similar provision and a similar construction put upon it. 

Mr. CARPENTER. My friend will pardon me. I believe I had his 
permission to interrupt him. 

Mr. THURMAN. Ouce every ten minutes. 

Mr. CARPENTER. I understand the Senator to maintain that the 
power of the Senate in judging of the election of its members is pre¬ 
cisely the same as the power of the House in judging of the election 
of its members. Am I right ? 

Mr. THURMAN. Under the same clause. 

Mr. CARPENTER. It is conceded on all hands that the House may 
inquire into the qualifications of the elector voting for a candidate 
claiming a seat. Does the Senator maintain that the Senate can in¬ 
quire into the qualiiications of the elector—that is, the member of a 
legislature—to hold his seat and vote for a Senator? 

Mr. THURMAN. The Senator has only anticipated me. I had not 
forgotten that that inquiry would be put. I believe I answered it 


9 


the other day. The Senator probably did not hear it, or it attracted 
his attention so little that he paid no attention to it. 

Mr. CARPENTER. I would like to hear the answer now.. 

Mr. THURMAN. The answer is very plain and perfect. The decis¬ 
ion of an inspector of election, sitting to receive votes for a member 
of the House of Representatives, extends how far? It extends to 
the question of whether or not a man is a legal voter. In some States it 
does not go that far, for they have prohibited that inquiry in Alabama; 
but that is as far as it extends in any of the States—to inquire whether 
a man is legally entitled to vote. That decision of that judge or in¬ 
spector is not conclusive and final. It is not conclusive and final in 
the State, for if he decides erroneously—if he rejects the vote of a 
man who is entitled to vote—he is liable to action and to pay dam¬ 
ages, although he acted in the most perfect good faith. That is the 
law in Ohio, and I am sure it is in many other States. It is not, 
therefore, conclusive in the courts of his own State, and is not con¬ 
clusive in that highest and only court which can try the right of a 
member to a seat in the House of Representatives of Congress. But 
that is not the case with a State legislature, because the State consti¬ 
tution, which we respect, and which our Constitution does not author¬ 
ize us to overthrow, says that each house of the general assembly 
shall be the judge of the elections, qualifications, and returns of its 
members. 

Mr. HAMILTON, of Maryland. Has that constitution any more 
power than the common law, if it is against the Constitution of the 
United States ? 

Mr. THURMAN. It is not against the Constitution of the United 
States. 

Mr. HAMILTON, of Maryland. You can inquire into it ? 

Mr. THURMAN. Inquire into*what? 

Mr. HAMILTON, of Maryland. Into the qualifications of members 
of the legislature of a State? 

Mr. THURMAN. I say you cannot. 

Mr. HAMILTON, of Maryland. I say so too. 

Mr. CARPENTER. Then the power is not the same in the two 
Houses, because we all concede that the House can inquire into the 
qualifications of an elector. 

Mr. THURMAN. The Senator understands me perfectly well. What 
Ave inquire here is, Avas that a legislature ? That Ave can inquire into 
just as the House can inquire Avhether the men Avho voted for a mem¬ 
ber of Congress were the electors. If they were the legislature, then 
they are the electors of the Senator; but when you come to the ques¬ 
tion as to Avhether they Avere the electors of the Senator, you come to 
a rule of eA r idence, and it is simply a rule of evidence that the decision 
of each house of the State legislature, made pursuant to its constitu¬ 
tion, is conclusive on that question. 

Mr. CARPENTER. Does the Senator mean that we may judge of 
them, but are bound to judge as they judge? 

Mr. THURMAN. The Senator ought not to put a question to me 
in that Avay. He is too good a lawyer to put a question in that ad 
captandum way. If we were on the stump it would do, but Ave are 
not on the stump. The Senator knows very Avell that the rule of 
eA T idence in one case may be very different from the rule of evidence 
in the other, but the substance of the thing is precisely the same. 

Mr. CARPENTER. Suppose a Senator is elected by a majority of 
one in a legislature, and an offer is made here to show that that one 
man,'who turned the scale in the legislature, got his seat by bribery 
at the polls ? 


10 


Mr. THURMAN. You cannot prove it, and nobody ever pretended 
that you could; and it does not militate against my argument. 

Mr. STEWART. Suppose he was not elected at all? 

Air. THURMAN. Suppose he was not, but was admitted by the 
body which had the sole right to judge. 

Mr. CONKLING. May I inquire? 

Mr. THURMAN. I suppose so. 

Air. CONKLING. I simply want the authority for that proposition. 

I want to know whether it is the Senator’s assertion, or whether there 
is any authority for it ? 

Mr. THURMAN. What proposition ? 

Mr. CONKLING. The proposition that we cannot inquire whether 
ten men in the legislature of Kansas were mere intruders and usurp¬ 
ers, with no certificates at all. 

Mr. THURMAN. Air. President, I am not the teacher of a common 
school, to instruct my friend the A B C of the law. He knows just 
as well as I do, and he knew just as well before he asked the question 
as he knows now, that when either branch of a State legislature has 
passed upon the right of a man to a seat in that legislature, we have 
no right to go behind that decision. 

Mr. MORTON. Will the Senator allow me to make a suggestion 
right there ? 

Air. THURAIAN. Yes, sir. 

Air. AlORTON. Air. President, by the Constitution— 

The House of Representatives shall he composed of members chosen every sec¬ 
ond year by the people of the several States, and the electors in each State shall 
have the qualifications requisite for electors of the most numerous branch of the 
State legislature. 

The House of Representatives, in a contested election, must accept 
the electors as the State provides them for the most numerous branch 
of the State legislature, whatever that maybe. Now, when you come 
to the Senate, the electors are those who compose the legislature, that 
legislature to be determined according to the law of the State. As 
the State gives us the legislature, so we have got to take it, each 
member of it; and as the State gives us the electors for members of 
the House, so we have got to take them. That is the whole question. 

Air. THURMAN. Now, Air. President, I will proceed to call atten¬ 
tion to another thing : The whole argument of my friend from New 
Jersey hinges on the word “ chosen.” 

The Senate of the United States shall be composed of two Senators from each 
State, “chosen” by the legislature thereof. 

What is the meaning of this word “chosen ?” It means “elected;’ 
that is all it means, and I will prove it to you in one moment* 
The very clause which I have already read says that we are 
judges of the elections. Is not that the choosing? When, there¬ 
fore, it says that we are the judges of the election, it says we 
are the judge whether this man was chosen, and “chosen” and 
“elected” are used as convertible terms. Therefore, there is nothing 
in this word “ chosen” at all, any more than if it had been “ elected 
by the legislature thereof,” instead of “ chosen by the legislature 
thereof.” We come back, then, to the proposition with which I set 
out; we are judges of the election, and no limitation is placed on our 
power to judge of the election, except that limitation which the law 
of the land places upon it. We have not an absolute discretion to 
say that this man was not elected for some fanciful reason which we 
may set up. There must be good cause why he is not elected. It is 
admitted on all hands that if it were duress, it would defeat the elec- 


11 


tiou. Why would it defeat the election '? Let us see. The case has 
been put here by my friend from Delaware, [Mr. Saulsmjry.] Sup¬ 
pose that the Kansas legislature had been surrounded by a mob or by 
a military force, and that under menace of death those members had 
voted for Mr. Caldwell, would you say that that was a valid elec¬ 
tion ? I know the answer that is given, “ There was no election ; the 
men had no choice.” 

Mr. CASSERLY. It was not a legislature. 

Mr. THURMAN. It was a legislature, but not a legislature exer¬ 
cising a free choice. The Senator might as well tell me that I had 
not a tongue, if he threatened to knock me down if I spoke, and I 
submitted and said nothing. 

Mr. CASSERLY. Allow me to ask the Senator a question. 

Mr. THURMAN. I will give way once more. 

Mr. CASSERLY. Does the Senator think that the Kellogg legisla¬ 
ture in Louisiana, for instance, which was a legislature constituted 
by military selection at the door of the house in which it met, was 
a legislature ? And now I should like to ask the Senator what differ¬ 
ence he sees between the Kellogg legislature so constituted and a 
lgislature which, though lawful when it met, was captured by mili¬ 
tary force. 

Mr. THURMAN. Mr. President, I hope to say something about the 
Louisiana legislature next winter, if I can get a chance to do it. I am 
not going into a discussion of Louisiana matters here. The Lord 
knows when I- shall get done if I were to answer such questions as 
these. 

1 say that the legislature of Ohio, which is now in session in Colum¬ 
bus, is a legislature, and would be if you had ten thousand troops 
around it, and none the less a legislature, too, if it were menaced with 
violence in case it did not pass a particular bill or do a particular act, 
as in the case where Lord George Gordon’s mob surrounded the House 
of Commons. It might have no free choice, and it would be right to 
say that a man who was chosen by it under those circumstances, that 
is, who had the forms of choice, was not the choice of the legislature. 
Certainly that would be a case of plain duress. And now I want 
to put to my friends: Suppose a legislature with a thousand bayo¬ 
nets around it, or with a mob like that of Lord George Gordon, 
crying out, “Elect Caldwell, or die,” had elected him, would you, if 
those members of the legislature should come here, and at your bar 
tell you, “ We would have voted for Caldwell anyhow, if there had 
been no bayonets, no mob there;” would you say that that was a valid 
election, or would you say it was no election at all ? Would you, for 
one moment, think of allowing members of the legislature to say that, 
under circumstances like that, “ that violence did not make any differ¬ 
ence with us; we would have voted for him anyhow ?” No, Senators, 
you would not do any such thing. You would say, “That election is 
void whether these members of the legislature voted according to their 
prepossessions or not; although every man of them preferred Cald¬ 
well to anybody in the world, that election, under those menaces and 
with those bayonets around them, is a void election. We will not allow 
men to change around afterward, and, contradicting the plain truth, 
say that, under these circumstances, they had a free choice.” No, sir; 
it is not simply a question whether ^he member had a free choice ; you 
would say in such a case as that conclusively, and not allow it to be 
rebutted, that they had not free choice. 

Mr. President, there is one case, then, in which it is admitted 
that you can go behind the formal vote. I think I can find others in 



which you could go behind it, and in which you would declare the 
election to be void. I think I can conceive of others in which you 
could do so. I can conceive of a case in which a legislature was im¬ 
posed upon and made to vote for a man under a false personation or 
the like, and in which the Senate would declare his election void for 
the fraud. I think I can conceive of such a case as that, and it would 
be very easy. But we need not go on speculating about cases. 
Bribery was a crime at the common law, and bribery avoids elections 
in every civilized country on the globe. There is not a single one in 
which bribery does not avoid an election. In our own country it 
avoids it in every State legislature; it avoids it in the other House 
of tins Congress; and if this Seuate shall declare that bribery does not 
avoid an election to the Senate, it will have the unenviable dignity 
of being the only body on God’s earth in which a man can buy a 
valid election with money. It militates nothing against this argu¬ 
ment that the courts cannot declare a law invalid because its pas¬ 
sage was procured by bribery. Of course they cannot, for the judicial 
power extends to no such inquiry. But our power, by the express 
terms of the Constitution, does extend to an inquiry into the validity 
of an election of a Senator. 

Mr. President, perhaps it is not necessary to go into the question 
whether a legislature, in electing a Senator, acts as a body of electors 
or whether it acts as a legislature. But upon this subject one thing 
is very certain, namely, that unless you give to the word “legisla¬ 
ture,” in the clause of the Constitution under consideration, the in¬ 
terpretation given to it by the Senator from Georgia, [Mr. Norwood,] 
who spoke so ably this morning, that is, as descriptive of a body of 
persons, the mode of electing Senators from the foundation of the 
Government to this day in most of the States has been plainly un¬ 
constitutional, for in the great majority of the States, from the very 
beginning, Senators were elected in joint convention. It is unneces¬ 
sary for me to say that a joint convention is not a legislature in the 
strict sense of the term. Everybody knows that it is not; everybody 
knows that it cannot be; that it would overthrow the very idea of 
the Government to say that that was a legislature. In all the United 
States the legislative power is partitioned between two chambers. The 
idea of a single chamber has no foot-hold in American institutions. 
Members are elected to a senate and members are elected to a house 
of representatives, and the house is usually much larger than the 
senate, and yet the senate has equal power in legislation with the 
house ; but if they were thrown into a joint convention to pass a law 
the superior numbers of the house would perfectly override the senate, 
and the whole idea of the checks and balances and better considera¬ 
tion of measures derived from two chambers would be lost. Why, 
sir, nobody would pretend that the legislature of any State, or that 
this Senate and House of Representatives, could get together and 
enact a law. 

Mr. BAYARD. I ask the Senator whether he considers it necessary 
for a republican form of government to have two houses of a legisla¬ 
ture; whether you cannot have a republican government with a single 
house, and whether our own Confederacy, which was a republic, had 
not but a single house ? 

Mr. THURMAN. I was not dealing with what would be a repub¬ 
lican government. 

Mr. MORTON. Is that question involved in this case? 

Mr. THURMAN. 1 have so much respect for my friend from Dela¬ 
ware that I am sure it must be or he would not have asked the ques- 


t.ion, because lie is not given to asking impertinent questions. 1 
therefore think it has some connection with this issue, but I confess 
I cannot see that it has. 

Mr. BAYARD. If I may give the reason for my question, I will 
do so. 

Mr. THURMAN. I shall be pleased to hear it. 

Mr. BAYARD. I asked the question because the Senator from Ohio 
had stated that when the two houses met in joint assembly they no 
longer were a legislature; that the constitution requiring that the 
legislature shall choose, and pointing out the method, yet the fusion 
of the two houses in the joint assembly, in his viewing, destroys the 
legislative character of the body and makes them a mere electoral 
body. Now r it occurs to me that if it were true that they were a body 
of mere electors, directed by Congress for the purpose of performing 
this duty, then Congress would have the right to look into their qual¬ 
ifications. Why will you not look into their qualifications ? It is 
because they are a legislature. It is because the constitution of the 
State makes them a legislature. It is because the constitution of the 
State alone determines their qualifications and puts it beyond the 
power of Congress to examine into them. Now, sir, if they are a 
mere body of electors, what prevents the Senate from testing their 
qualifications ? If they are a legislature, you admit the Senate can¬ 
not. Therefore I say that my question had pertinency, because the 
Senator seemed to consider that because they were a single body they 
could not be a legislature. I conceive that a republic can perfectly 
exist with a single legislative body, although our form of republics, 
following in the framework of the country from which we chiefly 
derive our laws, has two houses to act, one as a check upon the other; 
and yet it is well known that the Confederate Congress was a single 
body, and we had republics in existence at that time. 

Mr. THURMAN. I must confess that it proves the extreme sagacity 
and far-sightedness of my friend that he finds in the question he put 
to me, whether there might not be a republican form of government 
with one chamber, a pertinency to what I was speaking of. I was 
speaking of what constitutes a legislature, and not about the qualifi¬ 
cations of its members. But I do not know that it makes much dif¬ 
ference how this question is argued. We are all attempting to arrive 
at the truth, and I am perfectly willing to consider 1113 ' friend’s sug¬ 
gestion, although, if I speak longer than I intended to do, I hope the 
Senate will put to my credit the fact that interruptions have neces¬ 
sarily prolonged my discourse. 

It does not make one particle of difference, as to our right to inquire 
into their qualifications, whether you call the legislature that elects 
a Senator, in the act of election, a body of electors, or whether they 
are, strictly speaking, a legislature. As to the question of our right 
to inquire into their qualfications, it makes not the least difference in 
the world. I will suppose them to be a body of electors. Who is it 
that constitutes that body of electors ? The members of the legisla¬ 
ture; and, as I said before, who are members of the legislature is 
determined by each house of the State legislature itself, and conclu¬ 
sively determined. So there is nothing in that argument that, if they 
are to be treated as simply a body of electors, we should have a right 
to inquire into their qualifications. We would have a right to inquire 
this far, have they been seated there, or are they recognized by each 
house as members of that house? That is all. There your inquiry 
stops. There you are met with a piece of conclusive evidence which 
you are not permitted to rebut. 


14 


1 way once more that if the election of a Senator is a legisla¬ 
tive act, then the Constitution has been violated from the first elec¬ 
tion down to this day; then your act of Congress regulating the 
time and manner of election is flagrantly unconstitutional. Why 
so? Because under this act of Cougress (and one of the very reasons 
for enacting it, too, was this fact) if there is no selection of Senator 
on the first day, on Tuesday, then the two houses are required to 
meet in joint convention the next day, and a quorum to do business 
the next day and proceed to the election of a Senator is not a 
majority of each house, but is a majority of the whole number of the 
members of the legislature, of both houses together, who have been 
elected, and that majority of all the members of the legislature, of 
both houses, may proceed to the election of the Senator; and the 
consequence, therefore, is, that if on Tuesday there is no election and 
the next day the senate, being the smaller body, should refuse to go 
into joint convention at all, the house, according to your law, may 
elect a Senator, it having a majority of all the members elected. 
But is that a legislature in which there is no senate, when the 
State constitution declares that the legislature shall consist of a 
senate and house of representatives? No, sir; in accordance with 
the history of this Government, with the practice under this Gov¬ 
ernment, and with the act of Congress, you cannot treat the election 
of a Senator as a legislative act. 

But let me put another question to my friend. What will he do 
in those States in which every legislative act must receive the 
sanction of the governor before it takes effect? Must there be the 
sanction of the governor to the election of a member of the Senate 
of the United States? He will say it is foolish to ask such a ques¬ 
tion, because the Constitution of the United States provides that the 
Senator shall be elected by the legislature. Yes, sir; it does so pro¬ 
vide, and it does so provide with full knowledge of the fact that at 
the time that Constitution was adopted there was scarcely a State in 
this whole Union in which the approval of the governor was not 
necessary in order to the creation of a law. The very fact that that is 
the case does most powerfully tend to show that by the word “ legisla¬ 
ture ” as here used is meant that collective body of individuals who are 
members of the legislature, not the legislature in a technical sense 
as a law-making body. 

Mr. STOCKTON. 1 should like to ask the Senator from Ohio a 
question. 

Mr. THURMAN. Certainly. 

Mr. STOCKTON. I should like to ask him to explain the Harlan 
case. 1 should like to hear him comment on that case in the view he 
has just expressed. 

Mr. THURMAN. I think the Harlan case and I think the Indiana 
case would strengthen what I have said. I should think it would be 
pretty difficult to maintain that that body which elected Fitch and 
Bright was in a legal, technical sense the legislature of Indiana. It 
seems to me it would be very hard to maintain that proposition. As 
to Harlan’s case, the facts are not fresh in my memory, and I beg my 
friend not to read a page from the Globe to tell me what they are, but 
to read it after I am through. 

Mr. STOCKTON. I shall not read a page from the Globe, but I 
would like to explain-- 

Mr. THURMAN. I beg the Senator not to doit. lain tired. Sen¬ 
ators do me too much honor. They seem to think I am able to ex¬ 
plain everything, and I confess I am not. [Laughter.] 1 do not see 



very well how the Senate ever could have held that those Iudiaua 
gentlemen were elected, except upon the theory that the legislature 
spoken of in the Constitution that elects a Senator is a body of electors 
who are members of the legislature. That was a case in which the 
senate of Indiana refused to go into joint convention, and the house 
of representatives, or rather a majority of them and a minority of 
the Senate, did go into joint convention and elected Senators, and as 
they constituted a majority of the whole body of members of both 
houses, the Senate held the election to be good. Those are briefly the 
facts as I now remember them. 

Mr. STEWART. Everybody knows the decision was wrong. 

Mr. THURMAN. Everybody does! I do not know it. There were 
wise men in Gotham at that day as well as there are now. It may be 
that all others knew it, but I was not aware of it. 

Mr. STEWART. Either the State or the United States prescribed 
the method, and in that case they violated both. 

Mr. THURMAN. The United States had not prescribed a method. 

Mr. STEWART. The State had, and they violated it. 

Mr. MORTON. The State had not, by law, but only by usage. 

Mr. THURMAN. Congress had never prescribed any rule. 

Mr. STEVENSON. Nor the State either. 

Mr. THURMAN. Nor the State either. But, Mr. President, it is 
said that expulsion is the remedy. Now, I want the attention of my 
friend from New York, [Mr. Conkling,] who put Brother Norwood 
through the greater and lesser catechism both. He says, Suppose a 
legislature should elect a man guilty of murder to the Senate of the 
United States—that was the question of my friend from New York— 
would he hold the election void because they had elected a homicide ? 
And, assuming that that must be answered in the negative, then he 
put the question, Could we not expel that murderer f Would we 
allow him to sit here among us ? 

Mr. CONKLING. My friend will allow me to say that I did not 

fj t- 

put that question. 

Mr. THURMAN. I thought that was the question. 

Mr. CONKLING. If I can state the question without interrupting 
the Senator, I will do so. 

Mr. THURMAN. I will yield, provided the Senator will state the 
question, and not make a speech. 

Mr. CONKLING. Only the question. The Senator from Georgia 
put to us this case : suppose a man were indicted, after his election, 
for bribery, of which he hadbeeu guilty, and were convicted, and the 
record of his conviction were sent to us, would it not be absurd to 
hold that we must admit him and then expel him ? In answer to 
that, I said, suppose, after his choice by the legislature, he had been,- 
in the same way, by the same court, convicted of perjury, arson, or 
murder, and the record should be sent here, would it not be equally 
absurd to admit him and then expel him; and yet, could we say he 
was not elected ? 

Mr. THURMAN. That was exactly as I understood it, and I was 
just going to try to con vice my friend that the two cases are not par¬ 
allel, and that it would not be equally absurd. You might very well 
say that if a legislature saw fit to elect a pirate, or a perjurer, or the 
• like, we could not say that that would avoid the election, because we 
do not find anywhere in the parliamentary law that that has avoided 
an election. That does not go to the election itself; it is not part of 
the res f/esia 1 of the election. But now I put it to my friend if it 
would not look a little odd for us to hold, (supposing the proof to be 


16 


before us, when a man presents his credentials, that he obtained his 
seat by buying the legislature, by bribery—no question about the 
number: he bought enough, bought them all—and we have the un¬ 
disputed facts before us,) would it not look a little strange for us to 
pass at twelve o’clock in the day a resolution that the election was 
valid, and that he be sworn in as a Senator, and at half-past twelve 
o’clock expel him upon the ground that he had obtained his election by 
the very bribery of which the Senate had ample proof when, half an 
hour before, it permitted him to be sworn in ? First, hold the elec¬ 
tion to be valid, notwithstanding the bribery, and, in the next breath, 
say although he may be sworn in, he shall be instantly expelled be¬ 
cause of that bribery ? It does seem to me that that would present 
a very odd state of case, and yet, if the Senate shall decide that 
bribery does not go to the election, we will be necessarily driven to 
that absurdity. 

I think it would require a good deal more metaphysics than com¬ 
mon people possess to understand such a decision as that. I can 
understand why men who want to buy seats in this body may like 
a doctrine like that, which puts them under the protection of the 
rule requiring a two-thirds vote to expel; but why anybody who 
reasons simply according to logic and truth can find it consistent to 
declare in one breath that the election is perfectly valid, and in the 
next breath declare that, on account of the very res gestae of that 
valid election, we should expel the man whom you have sworn in ten 
minutes before, I confess I cannot so easily understand. I can, indeed, 
comprehend if, but I cannot appreciate it. 

Mr. President, I have occupied far more time than I expected, and 
far more than I should have done but for these pleasant little ques¬ 
tions and interruptions that have taken place, and which so enliven 
a dull speech that I am always happy to be interrupted in order that 
I may not wear out the patience of the Senate. Having stated all 
that I deem it necessary to say iu vindication of the vote that I shall 
give in favor of the resolution reported by the committee, I leave the 
subject. 


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